Case summaries for August 9-15, 2024

Civil | Commercial | Constitutional | Criminal | Employment | Evidence | Insurance | Personal injury | Post-conviction | Probate

Civil

Discovery sanctions affirmed
The defendant filed a counterclaim but made discovery responses that were “evasive and non-sensical … vulgar, profane, and completely disrespectful to the [circuit] court from which [the defendant] sought relief” so the circuit court granted the plaintiff’s motion for sanctions. The parties entered into a consent judgment and the defendant appealed. The sanctions were not unjust, and the consent judgment was not subject to collateral attack, so the Missouri Court of Appeals affirmed the judgment.
(Overview summary)
Tesla, INC. vs. Assurance Town and Recovery, LLC.
Missouri Court of Appeals-Western District - WD86743

Discovery sanction affirmed
Rule allows circuit court to enforce discovery rules through sanctions. An incomplete or evasive response is no response. Sanctions are justified upon a “contumacious and deliberate disregard for authority of the [circuit] court” that prejudices another party. No written findings are required. “Appellant forced Respondent to litigate unnecessarily and wastefully” through “multiple trips to the Courthouse and hearings before the Court, two motions to compel, a motion for sanctions, at least three court orders … a show-cause hearing, a couple of lost trial settings, and, ultimately, the striking of Appellant’s pleadings. While we admire the trial court’s patience and restraint, Appellant’s conduct was simply unacceptable.” Signing a party-drafted order was not error. The Missouri Court of Appeals did not review an unpreserved claim or error.
(Overview summary)
Vetter Construction Company, Plaintiff, vs. Innovated Construction, LLC, Respondent, vs. O.W. Partners, LLC, Appellant.
Missouri Court of Appeals-Eastern District - ED111965

Post-judgment interest awarded too late
In an action under the Federal Employers’ Liability Act, plaintiff claimed negligence per se, to which contributory negligence was not a defense, especially when violation of a state safety regulation was undisputed, the policy of uniformity among the states notwithstanding. To preserve error in the admission of error required more than a pre-trial motion in limine, to exclude, or to strike. Preservation of error in the admission of evidence viewed by the jury required a specific objection when offered and inclusion of that objection in an after-trial motion. Exhibits given to the jury during deliberations drew no objection or were not the subject of any after-trial motion, or both, and so were not preserved for appeal. Testimony contingent on uncertain events was speculative and subject to exclusion. Defendant did not show that statements from defendant’s employee to defendant’s lawyers were attorney-client privileged because defendant did not show that the statements were made at the direction of a superior. Photographs of a document did not constitute hearsay because they were not statements. United States statutes required a railroad to file accident reports and made them were privileged, but did not shield their content when discovered independently, and that did not apply to the railroad’s internal reports. Statute provided post-judgment interest, but rule limited when the circuit court could make that award. Moreover, the circuit court lost authority over the action when the judgment became final, which occurred when the circuit court ruled on the last authorized after-trial motion, so an amended judgment awarding post-judgment interest after that date was null. The Missouri Court of Appeals reversed the amended judgment and remanded the matter to circuit court to void the amended judgment.
(Overview summary)
Rachel A. Kinsella, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED111204

Commercial

Securities fraud found
Statutory definition of a security included a common enterprise with the expectation of profit, which the defendants’ prospectus described, and which the victim’s title of chief financial officer did not disprove because that title was merely nominal. State enforcement of the securities laws was subject to no statute of limitations, only to the limitation of a reasonable time, which depended on the circumstances. Circumstances showing that the commissioner of securities brought an enforcement action within a reasonable time included the victim’s illness and trust in the defendant, the defendant’s fraudulent concealment of facts from the victim, and the absence of prejudice to the defense from any delay. Overwhelming evidence of fraud included the defendant’s baseless projections of performance, misappropriation of funds for personal expenses, failure to yield promised financial control to the victim, and refusal to disclose expenditures.
(Overview summary)
Fango, LLC and Imani Butler vs. Douglas M. Jacoby and John R. Ashcroft
Missouri Court of Appeals-Western District - WD86051

Constitutional

Sex offender registry act was not punitive
Constitutional provisions barred ex post facto laws, meaning laws that punished conduct that was not subject to punishment before the law’s effective date. The Missouri Sex Offender Registry Act required sex offenders to register but registration was not punitive in the traditional sense and was rationally related to legitimate state interests like public safety. That rational relationship also showed that the act did not offend substantive due process. Substantive due process protected fundamental rights, which included privacy, but privacy did not vest in public matters like the subject of a guilty plea even when later sealed.
(Overview summary) 
John Doe v. Eric T. Olson, et al.
Supreme Court of Missouri - SC100296

Criminal

Tampering included attempt
The elements of plain error include an outcome-determinative error, and appellant failed to plead such error as to his presence for an entire preliminary hearing by video, so the Missouri Court of Appeals declined plain error review on that point. A criminal charge cited the statute on tampering with a witness. That statute specifically included any attempt to tamper with a witness so an amendment of the charge to describe an attempt was unnecessary, and evidence of attempts was sufficient for a conviction. The statute defined harassment, while the instructions defined harassment according to the allegations in the charges, but those facts did not plead plain error absent any error in the verdict director.
STATE OF MISSOURI, Plaintiff-Respondent v. CHRISTOPHER B. SHULTZ, Defendant-Appellant
Missouri Court of Appeals-Southern District - SD38138

Appeal dismissed under escape rule
Any person who escaped pending any part of that person’s criminal proceeding could, within an appellate court’s discretion, forfeit the right of appeal as to any matter before flight. That included appellant’s flight to avoid sentencing. Therefore, the Missouri Court of Appeals dismissed the appellant’s point related to the admission of evidence at trial. As to the appellant’s eventual sentencing, the appellant discharged his counsel, and the circuit court did not offer court-appointed counsel. The appellant preserved the right to counsel by raising it at the sentencing hearing. The Missouri Court of Appeals vacated the sentences and remanded for re-sentencing.
STATE OF MISSOURI, Plaintiff-Respondent vs. ROBERT WILLIAM SHIELDS, Defendant-Appellant
Missouri Court of Appeals-Southern District - SD37757

No shifting of burden occurred
Prosecutor’s comments on credibility determinations did not constitute a shift in the burden of proof, especially in the context of repeated instructions on the State’s burden of proof, which the jury was presumed to have followed.
(Overview Summary)
State of Missouri, Respondent, vs. Calvin Pittman, Appellant.
Missouri Court of Appeals-Eastern District - ED111567

Employment

Disability as a factor in firing negated
On a motion for summary judgment, defendant could prevail by establishing facts that negated an element of plaintiff’s claim. In a claim under the Missouri Human Rights Act for discharge from employment based on disability, the elements included that disability was a factor in discharging plaintiff. Defendant established that defendant did not know about the disability when it discharged plaintiff, which negated an element of plaintiff’s claim, and plaintiff raised no dispute as to that element. Summary judgment for defendant affirmed.
JOHN LACKEY, Plaintiff-Appellant v. PHELPS COUNTY REGIONAL MEDICAL CENTER d/b/a PHELPS HEALTH, Defendant-Respondent
Missouri Court of Appeals-Southern District - SD38287

Evidence

Business records affidavit was inadequate
In an action to collect a debt, the defendant counter-claimed under the Fair Debt Collection Practices Act, and the plaintiff filed a motion to compel arbitration. In an earlier appeal, the parties contested an earlier motion to compel arbitration, resulting in a general remand and a later motion to compel arbitration. In support, the plaintiff offered evidence of assignment of arbitration rights in the form of documents. Such documents were subject to a hearsay objection, but statutes offered an exception for a business records affidavit with a prescribed foundation, which must always include relevance. the plaintiff’s affiant failed to show relevance in that the affiant kept records for one entity but offered records from another entity and failed to explain a self-authenticating document. Law of the case did not bar litigation of the later motion on an issue substantially different from the issue in the earlier appeal, so the appeal was not frivolous, and the Missouri Court of Appeals denied a motion for damages.
(Overview summary)
Jefferson Capital Systems, LLC, Respondent, vs. Stephanie Rice, Appellant.
Missouri Court of Appeals-Eastern District - ED112211

Insurance

No liability for bite by tenant’s dog
In an action for vexatious refusal to pay, the elements included the insurer’s lack of reasonable cause for refusal to pay. Insurer’s policy covered injuries caused by a condition of residential premises. Conditions of the premises did not include insured’s tenant’s dog, whose bite caused plaintiff’s injury. Summary judgment for insurer affirmed.
LANA SLOAN, Appellant v. FARM BUREAU TOWN AND COUNTRY INSURANCE COMPANY OF MISSOURI and JESSE CLARK, JOSEPH WEBB, and BOBBETTE WEBB, Respondents
Missouri Court of Appeals-Southern District - SD37751

Personal Injury

Highway construction contractor had no duty
On a claim of negligence, the elements included a breach of duty, and whether the defendant had any duty was a question of law. Such law included statute, contract, or common law. The common law imposed no duty on a highway construction contractor outside the area of that contractor’s design, construction, maintenance, or other control. The plaintiffs limited their theories of recovery to those pled in their petition as amended. The Missouri Court of Appeals affirmed summary judgment for the defendant.
BRANTLEY ATCHLEY and BECKY TITTLE, as survivors of Deceased Kayla Atchley, Plaintiffs-Appellants v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, and APEX PAVING COMPANY, Respondents-Respondents
Missouri Court of Appeals-Southern District - SD38169

Post-conviction

Less than all admissible evidence was okay
Generally, trial counsel could be effective without offering all admissible evidence. Specifically, an instruction on eyewitness identification, listing factors for a jury to consider in weighing the credibility of such evidence, was approved and mandated specifically to give the defendants “the benefit of this science without the delay and expense of having to adduce expert testimony in each case[.]” Therefore, when the prosecution’s case partially negated a strategy to impeach eyewitnesses’ identification of the defendant through expert testimony, trial counsel’s choice to rely on the factors in the instruction was soundly strategic.
(Overview summary)
Re'Quon D. Dillard vs. State of Missouri
Missouri Court of Appeals-Western District - WD86252

Too late for second trial
In a criminal action, when the circuit court announced a sentence of four years’ confinement in the defendant’s presence, the circuit court rendered judgment. The circuit court then lost all authority except under a rule allowing the circuit court to arrest or set aside a judgment, for lack of jurisdiction or a charge that does not constitute an offense, for 30 days. An error in sentencing was merely an error of law and did not render the judgment void. Nevertheless, after 30 days, the circuit court recalled the defendant for another trial and, on defendant’s guilty plea, imposed a sentence of 15 years. The defendant’s guilty plea in that second trial did not waive any defects in that second trial because the circuit court had no authority to conduct the second trial. On those facts, the circuit court erred in denying relief, so the Missouri Court of Appeals reversed the judgment and remanded the motion to circuit court to vacate the second sentence and restore the first.
BOBBY JOHNSON, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals-Southern District - SD38084

Claim was beyond rule’s scope
On charges of sex offenses against a child victim, the state offered propensity evidence in the form of earlier convictions. On a claim of ineffective assistance of counsel, the movant did not plead any further argument that trial counsel should have offered to distinguish the earlier convictions from the pending charges beyond those offered in a motion in limine. Further details on the earlier convictions would have been harmful. Instructions on propensity evidence negated prejudice. Trial counsel’s manner in, and extent of, cross-examining the victim was strategically sound and movant showed no prejudice. To the contrary, the movant’s suggested strategy was more risky. On appeal, the Missouri Court of Appeals affirmed movant’s convictions, holding that legal relevance was not grounds for excluding that evidence. The Supreme Court of Missouri overruled that reading. Nevertheless, the Court denied the movant’s motion for transfer. That denial, the movant claimed, constituted a deprivation of due process and grounds for post-conviction relief. The Missouri Court of Appeals denied relief because the Supreme Court of Missouri’s denial of a motion to transfer is subject to neither post-conviction relief nor any authority of the Court of Appeals, and any erroneous reading of the law would have been trial court error subject to direct appeal.
(Overview summary)
Gregory B. Jones, Appellant v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED112116

Advice against testifying okay
The movant’s proposed testimony at the criminal trial was unnecessary to the defense, more helpful to the state, and not outcome determinative, so trial counsel’s advice against testifying was a reasonable trial strategy. Impeaching a witness with the context in which the witness became acquainted with movant would not have constituted a viable defense.
(Overview summary)
Jason L. Hughley, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED111803

No final judgment
The abandonment doctrine applied only to appointed counsel. Counsel was a public defender who assumed the defense of an indigent person without being appointed so no appointment was necessary. Counsel filed an amended motion out of time without an extension granted, so the amended motion was not before the circuit court, and the circuit court only had authority over the initial motion. The initial motion included matters not addressed in the judgment, so the judgment was not final. Without a final judgment, the Missouri Court of Appeals had no authority over the appeal and dismissed the appeal.
(Overview summary)
Christopher Cole, Respondent, vs. The Kansas City Southern Railway Company, Appellant.
Missouri Court of Appeals-Eastern District - ED111377 and ED111378

Probate

Motion to substitute personal representative denied
Statutes required administration of any decedent’s estate in the county of decedent’s permanent residence, which was shown by decedent’s “actual personal presence” and an “intention to remain” indefinitely. Evidence supporting the circuit court’s determination, that decedent changed his permanent residence from Hickory County to Polk County, included: decedent’s departure from a Hickory County residence to a Polk County residence, living in the Polk County residence ever after, never expressing any intent to return to the Hickory County residence, changing his address to the Hickory County residence, and appellant spouse’s ex parte order of protection barring him from the Hickory County residence. Statutes gave decedent’s spouse a preference, but only if otherwise qualified, and allowed any interested person to apply when spouse had not applied within 20 days. Appellant showed no prejudice from a delay in setting a hearing. The Court of Appeals affirmed the circuit court’s denial of appellant’s motion to substitute herself as personal representative.
In the Estate of QUENTIN LEE JONES, Deceased, MARY BETH JONES, Appellant v. ADAM CHRISTOPHER JONES, Respondent
Missouri Court of Appeals-Southern District - SD38239